CCZ 04-18 Shumba and Two Others v Minister of Justice, Legal and Parliamentary Affairs and Five others

(1) GABRIEL SHUMBA (2) SIBONILE MFUMISI (3) DARLINGTON NYAMBIYA

v

(1) MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (2) THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION (3) ZIMBABWE ELECTORAL COMMISSION (4) THE MINISTER OF FOREIGN AFFAIRS (5) THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (6) THE ATTORNEY GENERAL OF ZIMBABWE

CONSTITUTIONAL COURT OF ZIMBABWE

GWAUNZA JCC, GARWE JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC,

MAVANGIRA JCC, BHUNU JCC & UCHENA JCC

HARARE, MARCH 14, 2018 & MAY 30, 2018

T. Mpofu, for the applicants

V. Munyoro, for the first, fourth, fifth, and sixth respondents

T. M. Kanengoni, for the second and third respondents

GWAUNZA JCC: This is an application in terms of s 85(1)(a) of the Constitution and the background to the matter is as follows: -

The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites economic reasons while the third applicant alleges his absence is premised on economic and political reasons. The applicants state that they wish to participate in the country’s harmonized general elections due later this year, 2018, but are precluded from doing so by certain sections of the relevant law. They accordingly seek the following relief: -

IT IS DECLARED THAT:

1. The failure to afford voting facilities to the applicants and similarly placed Zimbabweans based abroad be and is hereby declared unconstitutional in that it violates applicants’ rights as enshrined in s 67 and 56 of the Constitution.

ACCORDINGLY, IT IS ORDERED THAT:

1. Section 23 of the Electoral Act [Chapter 2:13] be and is hereby declared constitutionally invalid as far as it excludes citizens not resident in Zimbabwe from registering as voters in contravention of s 67 (3) as read with para 2 of the 4th Schedule to the Constitution of Zimbabwe.

2. Section 72 of the Electoral Act [Chapter 2:13] is hereby declared constitutionally invalid as far as it excludes citizens of Zimbabwe who are not in Government service from exercising their right to vote in contravention of s 56 (1), 56 (3), 56 (4) and 67 (3) of the Constitution of Zimbabwe.

3. The respondents are hereby ordered to put in place all appropriate measures to enable the applicants and any other Zimbabweans based abroad to participate in the 2018 Presidential, Parliamentary and Local Authority elections as voters.